A three-judge panel of the Court of Appeals sent the challenge to the state’s recently-adopted lethal injection protocol back to the trial court today for further findings as to whether that protocol must undergo the administrative rule-making and review process before becoming effective.

Secretary of Public Safety Frank Perry had adopted a new protocol without such review in October 2013, after the General Assembly empowered him to do so with amendments to the law relating to executions passed last June.

Marcus Robinson and three other death row inmates had originally sued the state in 2007, arguing that the three-drug cocktail then used for executions lead to cruel and unusual punishment and that the procedures then in place for administering that injection and completing an execution had not undergone appropriate administrative review.

Wake County Superior Court Judge Donald Stephens ruled in favor of the state on the inmates’ claims in March 2012, but while the case worked its way through appeals, the legislature changed the law on executions, enabling the Secretary alone to determine necessary procedures.

Perry then issued[1]a twenty-page document titled “Execution Procedure Manual for Single Drug Protocol (Pentobarbital)” in October 2013 which in part replaced the three-drug cocktail with a single-drug.

After that change the inmates dropped their claims regarding the drugs used but continued to argue that the protocol followed to complete executions – including issues such as whether a physician should be present to oversee an execution — had to be approved through a rule-making process which included input from members of the public.

At arguments in the Court of Appeals in January, the state argued that it was exempt from rule-making requirements when it came to issues relating solely to inmates in the custody of DPS.

But the inmates contended that the manner of executions was hardly a matter relating only to death row inmates.

“The rules in the Execution Procedure Manual affect not only condemned inmates,” they said in court filings. “They also specifically direct the conduct of a number of other persons connected with executions, including inmates visitors, attorneys, clergy, members of the media, execution witnesses and members of the public.”

Former Supreme Court Justice Robert Orr amplified that argument on behalf of the inmates. “The execution of a citizen of this state is probably the single-most impactful act that the government can do,” he said[2]. “The public’s ability to understand how the procedure works, to understand who is there, to understand what their role is, is part of being an informed public.”

The judges themselves expressed concern during argument over whether the issue was even properly before them, given that the protocol now being challenged was adopted after the 2012 trial court ruling under appeal. That concern became the basis for the Court’s decision today.

Writing for the panel, Judge Robert C. Hunter said:

The order from which plaintiffs appealed contains no findings of fact or conclusions of law relating to the sole issue before us. Nor could it. These arguments could not have been considered by the trial court when it entered the 12 March 2012 order because they stem entirely from subsequent changes to section 15-188 and the execution protocol made during pendency of this appeal. Thus, in effect, we have nothing to review. Absent a ruling from the trial court on these matters, we are without authority to consider them in the first instance on appeal.